Moving in with a partner is a milestone. It’s the merging of clothes, cutlery and customs. It’s the beginning of a new chapter, and one that’s usually embarked on enthusiastically.
But for all the excitement and the frivolity that comes with tussling over control of the TV remote, there are some serious legal issues in play. No one wants to think too much about these when they’re caught up in the romance of a ‘moving in’ proposal. But it is really important to understand what cohabitation means in law, as well as what it will mean for you personally.
So, here are some things to think about before taking the plunge:
Cohabitation is not marriage
For some couples, this is the reason they choose to simply live together. But with cohabitation come very few legal rights. Forget ‘common law husband and wife’; it’s a red herring. It doesn’t matter how long you live together, or that the relationship is a marriage in all but name (and law), you do not have the same entitlements as a spouse. For example, unless you are a legal owner (see below) or can establish that there is a trust in place, you will not acquire an interest in your home. If you and your partner split up, you will not be entitled to maintenance (other than for minor children). Nor will you be entitled to share your former partner’s pension, or to take a share of any assets that are not jointly owned.
Who owns the property?
The ownership of your home is significant if you and your partner were to break up. A cohabitee does not get an automatic interest in a property owned by their cohabitee simply by moving in. Even if you live in a property, owned in the sole name of your cohabitee, for a number of years and contribute to the bills it is very difficult to acquire an interest in the property. The only way to do this is by establishing there is a constructive trust, which will invariably involve expensive legal proceedings. If you were to begin contributing to the mortgage and other outgoings or agree to make a capital contribution to the cost of renovations or to redeem the mortgage, you should discuss what interest you will acquire in the property and enter into a declaration of trust to ensure you receive funds in the event of a sale. If you do not, you may be left without anywhere to live and no financial security to show for your years of cohabiting.
If you are considering buying a home in your joint names, your solicitor should explain the two ways of owning property. These are ‘joint tenants’ and ‘tenants in common’. If you hold a property as tenants in common you each own a share of the property, which will pass on your death in accordance with the terms of your Will. Holding the property as tenants in common also protects any unequal contributions to the property as it is possible to hold the property as tenants in common in unequal shares. If you hold the property in this way, it is sensible to draw up a separate declaration of trust setting out the shares you each own and the way the net proceeds of sale will be divided upon a sale.
If you choose to hold a property as joint tenants, you will share the entire property together and will each receive 50% of the property in the event of a sale. As you own the property together, the doctrine of survivorship operates which results in the property passing to the survivor in the event of death, irrespective of anything written in your Will.
If you split up, who gets to stay in the property?
Unless the property is held in your sole or in joint name, a cohabitee does not have a statutory right to remain living in the family home. Ideally, partners would agree what should happen to the property.
The parental responsibility question
Parental responsibility defines the responsibilities that parents have for their children. These responsibilities include the need to act in their children’s best interests and make big decisions in relation to their children’s education, medical treatment, religion and name. These big decisions should be made jointly by all people who share parental responsibility for the child.
A mother automatically acquires parental responsibility for her children at birth, as does a married father. An unmarried father gains parental responsibility if he is named on the child’s birth certificate, if he enters into a parental responsibility agreement with the mother, if he later marries the child’s mother, or by an order of the Court.
Cohabiting parents therefore need to be aware of this difference. While parental responsibility is often assumed by parents committed to raising their children, the lack of this legal status can cause problems for a cohabiting father if the mother is no longer around or able to exercise her responsibilities.
These are all important considerations. But one thing that can really help along the way is a cohabitation agreement. These set out the practical and financial things agreed between partners who are about to move in together, or who have already done so. Not only will they reduce the risk of disputes but they provide the opportunity for couples to decide how they will deal with their assets and how their outgoings will be paid.